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Israeli army continues to breach Supreme Court injunction prohibiting use of Palestinian civilians as human shields

Yesterday, 24 December 2002, seven human rights organizations made a further submission to the Supreme Court in connection with their 5 May 2002 petition seeking to prohibit the Israeli army from using Palestinian civilians as human shields. The submission was filed by Adalah, the Association for Civil Rights in Israel (ACRI), LAW - The Palestinian Society for the Protection of Human Rights and the Environment, Physicians for Human Rights - Israel, B’Tselem, The Public Committee Against Torture in Israel, and HaMoked: Center for the Defence of the Individual. Prepared by Adalah Staff Attorney Marwan Dalal, the submission addressed written arguments advanced by the State on 5 December 2002, in response to the organizations’ petition, their motion for immediate injunction, and their 20 November 2002 motion for contempt of court.

In the submission, the petitioners presented four new cases documented by B’Tselem which detail the continued use of Palestinian civilians as human shields, despite an injunction issued by the Supreme Court on 18 August 2002 banning the practice, and following the petitioners’ motion for contempt of court. On 11 December 2002, for example, Israeli soldiers forced Nabhan Najar to search the home of the Badra family in Nablus. At gunpoint, Mr. Najar was made to participate in an extensive search of the home, during which the soldiers accompanying him repeatedly fired shots into closets, storage spaces and ceilings. In the course of this operation, Osama Badra was shot and later died.

The State contended, in its 5 December response, that the army had issued an order prohibiting the use of Palestinian civilians as human shields or as hostages in the course of its operations in the Occupied Territories. The response also stated that an investigations committee had been established, and that investigations were taking place into evidence presented by the organizations in their petition and in the recent motion for contempt. Further, the State claimed that the army has begun disciplinary proceedings against a lieutenant for using a Palestinian woman as a human shield.

The State explained in its response that a new order has been issued by the army, which permits military commanders to request the “assistance” of Palestinian civilians. According to the order, such assistance may be provided when there is, at the discretion of the commander, no danger to the civilian; and when the civilian agrees to comply. The State claimed that this practice is useful in minimizing civilian casualties, and that it does not constitute participation in a military operation.

In their submission, the organizations rejected the State’s claim that seeking “assistance” from Palestinian civilians does not amount to involving them in military operations. The “assistance” described by the State, such as walking in front of soldiers, knocking on doors, and asking persons to come out in order that the army may arrest them, are clearly part of military operations and, as such, are inherently dangerous. Additionally, the petitioners stressed that no Palestinian would voluntarily agree to assist a foreign, hostile, occupying army in carrying out its operations.

The petitioners argued that the army’s “assistance” order, approved by Attorney General Elyakim Rubinstein, amounts to continued use of Palestinian civilians as human shields or hostages, and as such, is a violation of international law. The practice violates Palestinians’ rights to life, dignity, and freedom from humiliating and degrading treatment, which are protected by the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949). The army’s continued use of this illegal practice is a grave breach of the Geneva Convention, and hence a war crime.

The petitioners included in their submission a decision of the International Criminal Tribunal on the Former Yugoslavia. In 1999, the Tribunal convicted Bosnian Croat prison camp commander Zlatko Aleksovski of violations of international law for his involvement in the use of Muslim prisoners as human shields.

The petitioners stated in their submission that the discretion of military commanders, in determining whether it is safe to involve Palestinian civilians in operations, can not and should not be trusted. In an article published on 12 April 2002 in the weekly Israeli army news magazine Bamahane, a soldier reported using a Palestinian civilian as a human shield in identifying objects thought to be bombs, despite the fact that there had earlier been explosions at the same location. In the August 2002 motion for injunction, the organizations provided evidence that military commanders continued to perceive the use of civilians in military operations as efficient and justified even after the death of Nidal Abu Ahmad on 14 August 2002, killed while “assisting” in apprehending an individual sought by the Israeli army. Further, the organizations demonstrated that contempt for Palestinian lives is present at the army’s highest echelons. In an interview with Ha’aretz published on 30 August 2002, Israeli army Chief of Staff Moshe Ya’alon said of Palestinians that they are a “cancer that should be dealt with through chemotherapy.”

The petitioners also submitted Amnesty International’s “Shielded From Scrutiny: IDF Violations in Jenin and Nablus” (4 November 2002), a report that documents human rights violations by the Israeli army during “Operation Defensive Shield,” including the use of Palestinian civilians as human shields. Further, they submitted reports by the United Nations Human Rights Commission which chronicle violations of Palestinians’ basic human rights by the army. These reports included former UN High Commissioner for Human Rights Mary Robinson’s “Report of the High Commissioner on her visit to the occupied Palestinian territories, Israel, Egypt and Jordan (8-16 November 2000)” (29 November 2000), and the “Report of the human rights inquiry commission established pursuant to Commission resolution S-5/1 of 19 October 2000” (16 March 2001). The organizations stressed that these reports demonstrate the Israeli army’s clear disregard for the rights and safety of Palestinian civilians, and are further evidence that army commanders’ discretion cannot be trusted in determining safety risks posed to Palestinians.

In its yesterday’s submission, the organizations requested that the Court maintain the existing temporary injunction against the use of Palestinian civilians as human shields, issue an order nisi requiring the respondents to explain their continued use of the practice, and levy fines against the respondents for violating the injunction. In their 5 May 2002 petition, the organizations named as respondents the Commander of the Israeli Army in the West Bank, the Chief of Staff of the Israeli Army, the Minister of Defense, and the Prime Minister of Israel. The next hearing on the petition is scheduled for 5 January 2003.